I Fought the Law

Abortion, Global Warming, Scientific Uncertainty, and the Supreme Court

I just finished reading the opinions in Gonzales v. Carhart, the 5-4 decision in which the Supreme Court upheld the federal Partial Birth Abortion Ban Act (because nobody in the medical community calls it "partial birth abortion," this is the last time I'll be using that term). I have to say, while I'm still a big fan of Kennedy, he really uncorked a stinker with this one.

The case marks the first time that the Supreme Court has upheld a ban on a particular abortion procedure, and the first time the Court has not required a health exception to save an abortion ban's validity. Although Kennedy got there by interpreting the statute very narrowly (and thus pretending he wasn't overruling any previous decisions), these are still extremely important developments in the area of abortion jurisprudence.

What's striking about Kennedy's opinion is the role of the scientific evidence considered by Congress in enacting the ban and by the district courts in striking it down. The majority opinion begins with several pages of excruciating, gory (literally) detail about what exactly happens when a doctor performs either a "dilation and extraction" abortion or an "intact dilation and extraction" abortion. The difference between the procedures is that in "regular" D&E abortions the fetus is removed in several pieces, while in intact D&E the fetus is delivered intact and then destroyed before it comes all the way out. The ban applies only to the latter procedure.

Apart from the concreteness of Kennedy's gruesome (and largely unnecessary) description of the procedures at issue, the opinion is otherwise dripping with scientific uncertainty, and Kennedy bizarrely latches onto this uncertainty in justifying the ban. In what is likely the most inflammatory portion of the opinion, Kennedy essentially says that the law is necessary to protect women from their own bad choices, starting from this glorious premise:

"While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. [Citation to amicus brief.] Severe depression and loss of esteem can follow. See ibid."

Kennedy is therefore willing to accept what Ginsburg's dissent calls "an antiabortion shibboleth for which it concededly has no reliable evidence." Ginsburg, meanwhile, drops a brick of a footnote citing substantial evidence against the premise that Kennedy and the majority blindly accept.*

And while the majority accepts scientific conclusions it likes despite an acknowledged lack of evidentiary support, mere evidentiary disagreement is enough for the majority to reject a conclusion it doesn't like -- i.e., that a prohibition on intact D&E creates significant health risks. Again, Ginsburg goes on at length about the exhaustive findings of the three district courts, and the overwhelming evidence regarding the safety benefits of intact D&E. The majority doesn't cite anything comparable in support of the opposite position (apparently having used up its page limit by discussing the various ways in which the scissors are inserted into the fetus skull), but conclusorily states that "uncertainty" exists on the issue.

And in the face of this uncertainty, the majority disturbingly errs on the side of government regulation rather than the protection of constitutional rights. This is a subtle, yet significant erosion of reproductive rights, decreasing their stature in the pantheon of constitutional freedoms. Enabling the government to ban an abortion procedure that medical professionals have deemed necessary simply by pointing to a supposed "uncertainty" among the scientific community doesn't leave much protection for the underlying right. Even assuming such uncertainty does exist, Ginsburg pithily observes that "uncertainty [is] a factor that signals the presence of risk, not its absence." In other words, err on the side of protection.

The use of manufactured scientific uncertainty to advance an agenda has become a classic trick among conservatives. Opponents of environmental regulation pull this all the time, either by marching out the outlying scientists who don't believe in global warming or, more generally, allowing private companies to submit phony scientific studies via the Data Quality Act to create "uncertainty" and tie the hands of environmental regulators.

Kennedy wasn't fooled in Massachusetts v. EPA, a case which also relied heavily on scientific evidence regarding a controversial issue, but he seems all too willing to go along with the charlatans in this case. Given the opening narratives of the majority opinion, Kennedy seems to have been guided more by his aversion to D&E than any concern with the science of women's health. His opinion is disappointing on a number of levels.

* For some energetic discussion of the paternalism of Kennedy's approach, see Dahlia Lithwick's article here, and Marty Lederman's post here.

Posted by hb at April 19, 2007 10:48 AM